RAMA DHURAJI BACHKAR v. THE STATE OF MAHARASHTRA AND OTHERS
Case Details
( 1 ) crwp1479.22 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 938 CRIMINAL WRIT PETITION NO.1479 OF 2022 RAMA DHURAJI BACHKAR VERSUS THE STATE OF MAHARASHTRA AND OTHERS Mr.K.N. Shermale,Advocate for the petitioner. Mr.Y.G. Gujarati, APP for the respondent/State. CORAM DATED : : KISHORE C. SANT, J. 05.01.2023 PC :- 01.
Facts
Heard learned Advocates for the parties. By consent, taken up for final hearing. 02. The petition is against the action of externment taken against the petitioner. Initially the order of externment was passed by the Externment Tribunal cum Superintendent of Police Ahmednagar against three persons including the present petitioner for a period of two years from Ahmednagar district, by order dated 20.08.2021. The appeal was preferred by this petitioner and his brother Laxman before the Divisional Commissioner, Nashik, bearing externment appeal No.112 of 2021. Same came to be rejected by order dated 02.02.2022. The petitioner is, therefore, before this Court. ( 2 ) crwp1479.22 03. It is submitted that the authorities below have failed to apply their mind properly and the impugned action is taken is illegal. There is no sufficient material on record to come to the conclusion that the activities of the petitioner are such, where the action is required to be taken under section 56 of the Maharashtra Police Act. There are only four offences pending against the petitioners. It is submitted that merely because he happens to be real brother of one Laxman, the authorities have taken action against this petitioner also. The petitioner, in-fact, is a student and has not indulged into any illegal activity. He is not convicted in any of the offence till now. He pointed out that there are only two statements recorded of secret witnesses. Both these witnesses are from the village of the petitioner. Thus, at the most the allegations are in respect of activities in one village. There was no reason to extern the petitioner from the entire district. He further submits that the reply filed by the petitioner is not properly considered. He further submitted that the learned Divisional Commissioner also failed to consider the ground taken in the appeal. 04.
Legal Reasoning
delivered by a Division Bench of this Court in Criminal Writ Petition No. 878 of 2017 in the case of Pradeep Vs. State of Maharashtra. In para 10 of the said judgment the Division Bench of this Court has held that an order of externment can be passed against a person whose movements or acts are causing or calculated to cause alarm, danger or harm to person or property as provided in clause (A). The order of externment can also be passed against a person if there are reasonable grounds for believing that such a person is engaged or about to be engaged in the commission of an offence involving force or violence as provided in clause (b). The authority should form an opinion that the witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property. It is held that it was incumbent upon authority to deal with the externment proceeding, by arriving at the opinion ( 6 ) crwp1479.22 that the witnesses are not coming forward to give evidence in public. In para 13 of the judgment the Division Bench has observed that all the offences have been registered at Sangamner and Parner Talukas and no specific instances were assigned for externment of the petitioner therein from Nashik and Pune district. The Division Bench, therefore, has set aside the externment order by observing that there was procedural irregularity by the authority while passing the order. 09. In this case looking to the statements and the above cited judgments, there are only two persons shown to have stated that because of fear they are not ready to file complaint against the externees. The allegations are against all the externees. No specific allegation or act is alleged against the present petitioner. Though it is alleged that he is a member of the gang, but considering the number of externees i.e. three, they cannot be termed as members of a gang as defined under the Act. In this case it is also seen that the petitioner was taking education and was student when the action was taken and therefore that aspect is not considered by the authorities. For this reason, this Court comes to the conclusion that the impugned order suffers from non-application of mind, since both the witnesses are only from one village and not even from any other village from ( 7 ) crwp1479.22 said taluka. 10.
Arguments
Learned APP vehemently opposed the petition by supporting the ( 3 ) crwp1479.22 impugned action. He pointed out that in the secret statements, serious allegations are leveled against this petitioner. These witnesses have also stated as to why they are not coming openly to give statement against the petitioner and he prayed for rejection of the petition. 05. From the orders it is seen that the Externment Tribunal has considered the secret statement “A” wherein main allegations appear to be against Laxman. There is no specific allegation so far as this petitioner is concerned. The vague allegations are that all the persons against whom the action is taken have beaten and abused witness “A”, whose statement is recorded. It is further mentioned in the statement that these persons were in jail for quite some time. Secret witness “B” also given statement that the persons against whom action is taken have abused this witness. They had also assaulted him. Further it is stated in the statement that because of fear in the mind, he is not openly coming forward to give statement against the petitioner and other persons. In both the statements it is recorded that the persons against whom action is taken, are indulging into antisocial activities and they always give threats to people with dire consequences, if complaint is filed against these persons. ( 4 ) crwp1479.22 06. It is seen that the authorities have formed their opinion based on the report filed by the Sub-Divisional Officer. No proper application of mind seems to have been there in respect of the reply filed by the externees and more particularly present petitioner. Action is taken only on the basis of apprehension. The learned Appellate authority has also not considered the grounds taken in the appeal. In para 6.6 of the impugned order also it is seen that out of eight offences, only one offence is alleged to have been committed by all the externees. The offences are allegedly committed for the period from 2014 to 2018. On close scrutiny it is seen that no specific instances are given in the order. 07. Learned Advocate for the petitioner replied upon judgment delivered by the Apex Court in the case of Deepak s/o. Laxman Dongre Vs. The State of Maharashtra & Ors. (Criminal Appeal No.139 of 2022) In para 8 of the judgment the Hon’ble Court has considered the facts of the case. In para 11 of the judgment the Hon’ble Apex Court has observed that there was non-application of mind apparent on the face of record by the authorities. In further paragraphs, the Hon’ble Apex Court has considered that the order ( 5 ) crwp1479.22 under section 56 of the Maharashtra Police Act is a drastic action, whereby the right of externee under Article 19(1)(d) is violated. Therefore, it is necessary for the authorities to apply their mind properly and strictly to see that the conditions are fulfilled under section 56 of the Act. 08. Further judgment relied upon by the petitioner is the judgment
Decision
Hence, the petition is allowed in terms of prayer clauses (B) and (C) to the extent of present petitioner. snk/2023/JAN23/crwp1479.22 [KISHORE C. SANT, J.]